Appeal No.UKEATPA/1033/05/DZM & UKEATPA/1378/05/DZM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 15 March 2006
*And on review on 5 June 2006

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR A J MANNING 	APPELLANT

BRITISH TELECOMMUNICATIONS PLC 	RESPONDENT

Transcript of Proceedings

JUDGMENT ON APPLICATION FOR REVIEW

Rule 3(10) Application – Appellant only

Revised*

	APPEARANCES

For the Appellant	MR A J MANNING
(The Appellant in Person)

SUMMARY

Practice & Procedure:  Bias, Misconduct & Procedural Irregularity; Sex Discrimination: Direct, Disability Discrimination: Reasonable Adjustments 

Allegations of bias had no basis other than discontent at the balancing of the evidence of the parties.

The Appellant, disabled by depression, made claims of discrimination under Disability Discrimination Act 1995 and Sex Discrimination Act 1975 which were rejected. The Employment Tribunal made proper findings of fact as to the reason for the actions of the Respondent and as to justification for its instruction that the Appellant should have no direct contact with a female co-employee between 1994 and 2004, which he repeatedly breached.

The Employment Tribunal correctly applied the BHS [1980] ICR 303 EAT test to unfair dismissal for misconduct.  There was no dispute as to the self-direction on the statutes.

The full Employment Tribunal on a later hearing in reality conducted a review and not a preliminary consideration under Rule 35 as to whether to hold a review. But if it was a preliminary consideration by the Chairman under Rule 35, it was done in accordance with the overriding objective and was not a material irregularity.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about unfair dismissal, sex discrimination, disability discrimination and allegations of bias, together with questions relating to Employment Tribunal procedure on review.  I pre-read the papers and the careful and detailed Skeleton Arguments of the Claimant, Mr Manning, as I will refer to him. I will refer to BT Plc as the Respondent. I offered and made reasonable adjustments to take account of the Claimant’s disability consisting of a mental impairment for the hearing of the appeal and the giving of judgment which included sending a draft to him. He has commented on the draft in very extensive written submissions. I will treat the comments as including an application for review of my Judgment under Rule 33. I invited the submissions of the Respondent on this procedure, but I accept the Claimant’s point that there is no role for a potential Respondent to an appeal at a Rule 3 hearing. Since I was minded to consider a review, it was right that this should be made known to the Respondent. It has perhaps unsurprisingly invited me to uphold my original Judgment and contends the appeal has no merit. I will disregard the latter submission, yet form my own view to the same effect. Based on my appreciation of the Claimant’s difficulty at the hearing, it is in the interests of justice that I review the Judgment. This composite Judgment therefore represents my view on the applications under Rules 3 and 33, which appears later than I had wished for reasons I gave when I sent the unreasoned Order. 

Introduction
2.	These are two appeals by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal chaired by Mr I F Pritchard-Witts sitting at Bury St Edmunds over three days (14, 15 and 16 March 2005) and a day in chambers on 28 April 2005 which was sent with reasons to the parties on 1 July 2005.  The Claimant sought a review.  The application for a review was heard on 24 and 25 October 2005 and reasons were registered on 22 November 2005.  In the application for review, by consent the Chairman sat with only one of the members, Mrs B Thurston.  

3.	The Claimant represented himself at the substantive hearing and the Respondent was represented by a solicitor.  At the review hearing, the Claimant was in person and the Respondent put in written submissions.  The Claimant made claims under the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975; and that he was unfairly dismissed contrary to the Employment Rights Act 1996; and wrongfully dismissed.  The Respondent took issue with each of them.  The issues were defined by the Employment Tribunal in its judgment at paragraph 36 which consists of three pages agreed by the parties.  There were at least 23 issues.  

4.	The Tribunal decided that the Claimant failed on each of his applications.  He appeals against the judgment on the grounds that the Tribunal erred in law and also gave the appearance of bias which, I hold, is the correct depiction of the Claimant’s allegations phrased, as they are, in terms of (actual) bias.

5.	On the sift of the notice of appeal in accordance with Practice Direction paragraph 9, HHJ Peter Clark determined that there was no reasonable ground for appealing, for he said this:
“The Respondent’s treatment of the Appellant over this long running saga could not be faulted by the Employment Tribunal. They acted reasonably in dismissing him for breach of the necessary no-contact instruction. Summary dismissal was justified.  There was no breach of the Disability Discrimination Act.  The allegations of bias amount to no more than a complaint that the Respondent's was preferred to that of the Appellant. No reasonable grounds for appealing are shown”.

6.	Where no point of law is found, s21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction to hear the case.  The Claimant was given the opportunity to amend the Notice of Appeal or to have the case heard before a judge under Rules 3(8) or (10).  I am thus hearing this case on more material than was available to the judge and form my own view of the appeal.  The question for me is whether there are any or no reasonable grounds in the appeal.  For the purposes of my own review, I should consider whether in the interests of justice, in particular the effect of the Claimant’s disability on his presentation in person of the application, the Judgment should be varied. 

7.	A similar course of action was taken in respect of the review appeal, as I will call it, where Judge Clark again determined that there was no prospect, saying as follows:

“The preliminary consideration of a review application by a Chairman alone merely determines whether or not a review hearing is held. It was held. It was open to the Respondent to submit written representations at that hearing and for the Employment Tribunal to take them into account. Paragraph 4 of the grounds of appeal is misconceived. The correct procedure was followed by the Employment Tribunal”.

The legislation
8.	The Employment Tribunal set out the legislation at length in its judgment at paragraphs 37-38 covering the Disability Discrimination Act 1995, the Sex Discrimination Act 1975 including the amendment to the burden of proof and authorities relating to disability discrimination.  Elsewhere, without citing the Employment Rights Act 1996, the Tribunal also set out a brief précis of its approach to unfair dismissal which is clearly referable to the statute (see para 57) and to the jurisprudence on fair internal procedures (see paras 48-56) as relevant to the nine unfair dismissal issues identified. 

The facts
9.	The Respondent runs a major national telephone system. The Claimant has a lifetime’s service with it. Having joined as a school leaver in 1976 he was put through university as an electronic engineer by the Respondent when he won substantial scholarships.  He had thus been with the Respondent for almost 30 years when he was dismissed on 14 May 2004 by its officer, Mr McClean.  The Claimant has been engaged in litigation against the Respondent for over a decade.  I pay attention to the judgments of two previous Employment Tribunals in 1997 and 1999, cited by the Tribunal in my case, which painted the background to the judgment under appeal. They indicate that a difficulty arose in 1993 between the Claimant and a female colleague (“the colleague”) with whom he realised he was obsessed following an earlier friendly relationship.  The difficulty caused a souring of the friendship and the colleague’s demand that contact by him must cease.  

10.	The outcome was that management decided effectively to implement the Claimant’s own agreement and to separate them and gave written instructions that there should be no contact between the Claimant and the colleague.  In due course it was attenuated to a ban on non-essential direct professional contact. I will adopt the phrase “no contact instruction” to describe this. In the 1997 Employment Tribunal Judgment, the Claimant criticised the Respondent but the Tribunal overwhelmingly endorsed the Respondent’s approach. 

11.	The Claimant remained aggrieved and lodged a second Tribunal claim in March 1999.  This Tribunal again stressed the care and consideration with which the Respondents had handled the difficulty.  The Claimant went off sick.  He is, today, disabled by reason of depression.  The “no contact” instructions were continued, and the Claimant continued to disagree with them.  

12.	In 2002, an issue arose as to the setting up of a broadband project which the Claimant felt was not being made available to him, for he was being victimised under both the anti-discrimination measures, based on gender and disability.  Those complaints were not upheld, although it is true to say that there was some criticism of the Respondent which accepted it breached his disability and data protection rights. The Claimant was offered redeployment into a similar role as the broadband project (which the Employment Tribunal found no longer existed). 

13.	That was the background leading up to February 2003 when the Claimant returned from sick leave.  The Tribunal found what it described as the misfortunes overtaking the Claimant were, in his mind, connected to the “no contact” instruction.  In other words, the instruction caused difficulty to him and so on 8 April 2003, he breached the instruction and contacted the colleague.  The colleague objected, complained to management, felt so threatened as to go to the police and ultimately left, 10 years after the “no contact” instruction was first given due to his “sustained and unhealthy interest” in her. He was interviewed. Such breaches occurred time and time again before he was suspended, and thereafter.  Attempts by management to deal with the matter were met by non-co-operation and later by abuse.  The Claimant contends this abuse is a feature of his medication but the Employment Tribunal found that “there was nothing in the medical reports to indicate that the depression and/or the medication …. caused or substantially contributed to his behaviour.” I consider there was ample evidence from Dr Macauly and Dr Litchfield (see paras 33-34) for this finding. He had been given a five-year warning for such abuse in 1999 which was still live.

14.	The Respondent was also at pains to seek independent medical advice through a consultant psychiatrist.  On 14 May 2004, following further breaches of the direction, Mr McClean decided that the Claimant had committed serious disciplinary offences and his conduct justified summary dismissal.  The relationship of trust and confidence had completely broken down as a result of the Claimant’s behaviour and so summary dismissal was the only outcome.  He was permitted a right of appeal which he took and the basis of the appeal was that the Claimant had been suffering from depression. This was not given effect in the minds of the decision makers who dismissed him.  

15.	Secondly, the “no contact” instruction was invalid. It was a reasonable adjustment for the Respondent to have removed it, pursuant to the Disability Discrimination Act 1995.  The appeal was unsuccessful in front of Mr Price.  

16.	The Respondent has recourse, in its procedure, to a high level review by an independent manager - this was Mr Fitzgerald – and he felt that two matters were worthy of further review.  These were the side effects of the medication and the obligations of the Respondent under the DDA.

17.	There was a meeting; there was also a conference with Dr Macauly who was advising at the time.  The Tribunal found this:
“33		At that conference Dr Macauly advised that although it was impossible to rule out the possibility that side effects had distorted his behaviour, his strength of feeling in respect of the [female colleague] issues were. on the balance of probabilities, the causative factor. After reading the leaflets Dr Macauly confirmed her opinion.
34		Mr Fitzgerald further researched the matter with BT's Chief Medical Officer Dr Paul Litchfield. He advised, having read the literature that again. on the balance of probabilities, it was unlikely that the medication had contributed to his behaviour.
35		Having considered that it would not have been a reasonable adjustment to remove the no contact instruction and the medical advice he had received, the high level review was rejected by Mr Fitzgerald on 1 February 2005”.

18.	In dealing with the different strands of complaint made by the Claimant, the Tribunal noted that his complaints about the application of the broadband project were out of time.  It went on to hold that conducting disciplinary proceedings against the Claimant was indeed detrimental, but they were not linked in any way to the Claimant’s disability.  He had persistently breached the “no contact” order and he had committed gross misconduct.  The Respondent had sound commercial reasons which would justify taking the action which it did.  It could not be criticised for failing to make reasonable adjustments in the form of not removing the “no contact” instruction.  

19.	The Claimant’ case was that this instruction caused all his problems and the personnel file included matters which blighted his career.  The Tribunal held the “no contact” instruction was a neutral act, for the mutual protection of himself and the colleague.  The Tribunal dismissed, for the same reason, the claim of victimisation.  

20.	Turning to sex discrimination, the Tribunal noted where the burden of proof lay and considered whether disciplinary action would have been taken had the Claimant been a woman.  The Tribunal found that there was no evidence of a breach which would trigger a comparison.  The colleague had already left by the time a questionnaire had been issued to her.  The Tribunal found no evidence to establish the Claimant’s primary claim that there had been discriminatory assumptions about guilt or innocence in the mind of Mr McClean, nor was there evidence of victimisation.  

21.	The Tribunal turned to unfair dismissal. It noted that although the disciplinary procedure takes place in this Respondent’s organisation upon return from sickness, the departure in this case was reasonable.  The Tribunal found ample evidence to demonstrate that the Claimant was perfectly able to advance and explain his case by means of letters, e-mails and so on, notwithstanding his sickness. The Employment Tribunal correctly applied (implicitly in para 53) the BHS [1980] ICR 303 EAT test to unfair dismissal for misconduct.  There was no dispute as to the self-direction on the statutes.

22.	The Tribunal concluded that the Claimant’s criticisms of the handling of the procedure were not substantiated and that Mr McClean carried out a reasonable investigation.  It noted that the history was complex and detailed, but the facts of the case were not.  The Tribunal considered the matters put forward as potential mitigation including the Claimant’s psychiatric condition and the medication associated with it, but came to this conclusion:
“54.	….The difficulty with the former is that the transgression or transgressions of Mr Manning were deep seated, persistent and blatant. Notwithstanding that, he seemed to have no insight into the difficulties he was causing for the Respondent on the one hand and the upset he was causing to [the female colleague] on the other. It was as if he could not comprehend how his own view of what was necessary to alleviate his situation was not necessarily the correct one, when viewed against the background of the difficult personal dynamic which had to be addressed. Against that the number of years he had been in the employment of the Respondent was not going to be a decisive factor in the eyes of a reasonable employer, given these circumstances, in our judgment”.
The Tribunal dismissed allegations that the Respondent had behaved inconsistently or had failed to consider the mitigation, such mitigation including the Claimant’s almost 30 years’ service with the Respondent.  It also dismissed the claim of wrongful dismissal.  

23.	As to the application for a review, it is right to note that the Tribunal made a number of corrections and adjustments to its original decision at the behest of the Claimant.  With his agreement, I have accepted that this review judgment is to be read with the substantive judgment since it illuminates it.  It is very sensible when a judgment is given on an application for a review for there to be a mingling of the reasons.  The Claimant obviously scored some points at this hearing for the Tribunal adopted his submissions in part, but came to the conclusion that there was no reasonable prospect of the substantive judgment being changed. 

The Claimant’s case
24.	The Claimant attacks every aspect of the Tribunal’s approach to the facts, the legislation and the authorities in two densely typed Notices of Appeal (22 and 3 pages), two skeleton arguments (13 and 4 pages) and comments on my Judgment (4 pages).
 
25.	The Claimant submitted that the Tribunal had been biased in that it favoured the Respondent’s evidence over his.  As he put it:
“The Tribunal consists of human beings.  It has unconscious views on how someone presents to it.  It might be that I am regarded as an obsessive nutcase but nevertheless, other managers’ misconduct has been overlooked”.  
He also suggested to me that “there is a balance and I do not think that it was evenly spread”.  He contended that the Tribunal had played down certain aspects of the Respondent’s evidence which was favourable to it at his expense.  As to delay, it was contended that the delay between the close of the oral evidence and the registration of the judgment (3½ months) contributed to errors of fact, which were pointed out at the review hearing.

26.	The Claimant contends that the Tribunal failed fully to show how relevant findings of fact and applicable law have determined the issues.  He contends that the Tribunal failed to recognise that the colleague was engaged herself in matters which should be criticised and yet no account was taken of that.  As to unfair dismissal, the test set out in British Home Stores Ltd v Burchell [1980] ICR 303 was not met. As to the disability discrimination, the Tribunal wrongly failed to hold that the “no contact” instruction was a reasonable adjustment and that the source of the Claimant’s problems were his disability and/or the medication with which he was being treated for that condition.  It failed to apply correctly the reverse burden of proof and incorrectly applied the test for victimisation.

Conclusions
The Employment Tribunal’s first Judgment
27.	In my judgment, the Claimant’s case on appeal fails on all of the grounds.  I will take first the claim of bias.  I think Mr Manning recognised when I suggested what the correct test is, that his case was not as strong as he may have thought.  The correct test is that contained in Porter v Magill [2002] 2 AC 357, 494 at paragraph 102 per Lord Hope.  The assessment of the witnesses and the weight to be given to their evidence is a matter within the fact finding power of the Tribunal.  

28.	It seems to me that the logic which Mr Manning invokes in this case is that set out by Rimer J on behalf of the EAT in the London Borough of Hackney v Sagnia [2005] UKEAT 0600/03.  
63.	… Allegations of bias against employment tribunals are raised as grounds of appeal to this tribunal with what appears to be increasing frequency. They are most commonly made by litigants in person, often with little or nothing by way of tangible support for the complaint, which on analysis commonly amounts to no more than the deployment of the fallacious proposition that: (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased. Our experience is that bias allegations based on complaints that the employment tribunal approached the appellant’s case with a closed mind, having already pre-determined the matter against the appellant, have a low success rate. This is for the obvious reason that a tribunal cannot form a concluded view on the issues until it has heard all the evidence and the argument and so it will be a rare case in which a tribunal will at any earlier stage make any utterances which either side can rationally regard as the outward expression of some pre-judgment of the case. 

29.	In other words, aggrieved at the dismissal of what he considers to be a strong case, the only reason for it is the bias of the Employment Tribunal.  That does not get anywhere near the standard required for apparent bias set out in Porter v Magill and whilst not doubting the genuineness of the Claimant’s dissatisfaction with the Tribunal’s judgments, I hold that there is no ground to criticise it on the basis of it being biased or appearing to be biased.  

30.	I then turn to disability discrimination.  The contention is that the “no contact” instruction blighted the Claimant’s career and that this was a matter which could easily have been the subject of an adjustment by its removal and it was put in place on account of his obsessive conduct which is to do with his medical condition and/or his treatment. Essentially, these are matters of fact.  It seems to me that the findings as to the reason for the “no contact” instruction give a complete answer to this case.  In any event, the Tribunal’s auxiliary findings on justification are sufficient to defeat the case.  The Tribunal has decided that the “no contact” instruction was justifiably given.  Removing it cannot be said to be an adjustment it was reasonable for the Respondent to make in the light of the colleague’s complaints and the Claimant’s persistence.  I see no error of law. 

31.	The Tribunal also considered whether there was a connection between the Claimant’s conduct and his medical condition and/or his treatment. Again, it decided on the medical evidence which it considered and upon which the decision by the Respondent was based, that it was not.  In my judgment, no error has occurred. I considered the effect of disciplinary proceedings on a disabled person set out in OCS v Taylor UKEAT/803/04 which, from the Court of Appeal’s subsequent overturning of my judgment (see Taylor v OCS Group Ltd [2006] EWCA Civ 702 31 May 2006), appears to have been a generous approach to Mr Manning and, if I applied it, I would be wrong to do so..

32.	I then turn to sex discrimination.  Engagingly, Mr Manning told me that this was not the strongest part of his case and I hope, therefore, he will forgive me if I treat it briefly.  In my judgment, the Tribunal was tasked with considering whether apt comparisons could be made with the treatment by the Respondent of a hypothetical woman or an actual woman and came to its conclusions of fact about that.  I cannot see any fault in its approach.  

33.	Lastly, unfair dismissal.  The Tribunal has considered each of the allegations made of both procedural and substantive unfairness and has given reasons for rejecting the criticisms made, for example, of inadequate investigation or inadequate consideration of the Claimant’s medical condition.  I see no error in its judgment. .That is sufficient, therefore, for me to dismiss the appeal against the substantive judgment, informed as it is, by the reasons in the review judgment. 

The Employment Tribunal’s review Judgment
34.	The review judgment has caused me some concern.  The application made by the Claimant was for review.  This is a power given by Employment Tribunal Rules 2004, Rule 34.  The grounds upon which it can be made are.  
“34		Review of other judgments and decisions
(3)	Subject to paragraph (4), decisions may be reviewed on the following grounds only
(a)	the decision was wrongly made as a result of an administrative error;
(b)		a party did not receive notice of the proceedings leading to the decision;
(c) 	the decision was made in the absence of a party;
(d)	new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) 	the interests of justice require such a review”.

35.	There is then a preliminary consideration and the Rules provide as follows:-
“35	Preliminary consideration of application for review
(1)	An application under rule 34 to have a decision reviewed must he made to the Employment Tribunal Office within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.
(2)		The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), but if the decision to be reviewed was made at a hearing, an application may be made orally at that hearing.
(3)		The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision or, if that is not practicable, by
(a)	a Regional Chairman or the Vice President;
(b) 	any chairman nominated by a Regional Chairman or the Vice President; or
(c)	the President;
and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.
(4)		 If an application for a review is refused after such preliminary consideration the Secretary shall inform the party making the application in writing of the chairman's decision and his reasons for it. If the application for a review is not refused the decision shall be reviewed under rule 36”.

36.	If the preliminary consideration reveals that it cannot be said that there is no reasonable prospect, then there shall be a review (Rule 36(1)) and that is by the Tribunal or Chairman as appropriate which heard the original case.  In this case, the Employment Tribunal sent out a Notice of the Hearing indicating that the application would be heard by an Employment Tribunal.  It was headed “Notice of Hearing: Application for Leave to Review followed by review hearing if successful”.  The Claimant was puzzled.  He sent a letter of 6 October 2005 asking for directions as to how the review hearing would proceed and what bundles would be required.  Replying to that and another letter from the Respondent on 7 October 2005, the Chairman gave a direction:
“It is a matter for Mr Manning how he conducts his application.  He must do it within the time available and should seek advice if he is unclear how to proceed”.

37.	The criticism which the Claimant makes is that the Tribunal, now consisting of the Chairman and Ms Thurston, conducted the preliminary consideration under Rule 34 and did not get into a review.  It seems to me there is substance in that, for the language of the Tribunal, both expressly in its judgment in refusing a review, and the legal test it set itself, are consistent with Rule 34 (see, for example paragraphs 13, 18 and 19).  The Tribunal considered the Respondent’s written submissions, for it recorded this:
9	In reply the Respondents submit that in essence Mr Manning "simply seeks to rehash what he believes to be the stronger parts of his case" and that he is attempting to criticise the Tribunal for its reliance upon a factual interpretation consistent with the Respondents' case rather than his own”.

38.	The Tribunal dismissed the application for review but it did accept some of the Claimant’s points and clarified its findings.  What survives on appeal is this.  The Claimant complains that he was put to the expense of £80 in photocopying pages for a review which never took place and was placed under more stress in preparing for a review hearing which had not yet passed the preliminary consideration stage.  I have not doubt that the Claimant was put to some stress and anxiety bearing in mind, as I do, his medical condition.

39.	The position, as articulated today, is that the procedure was an irregularity, for under Rule 34, a preliminary consideration should take place by a Chairman.  There should not be a hearing but, after that consideration, a hearing may occur if there is to be a review.  The Tribunal was alert to this issue, for it said as follows:
“20		At the conclusion of the hearing Mr Manning requested that the Tribunal reassemble as he wished to apply for a review of the application for review. Mr Manning submitted that there was nothing within the body of the Regulations that had entitled the Tribunal to hold an application for review hearing and, further, such an application should never have involved the Respondents being provided with an opportunity to make their views known about the merits of such an application. Mr Manning drew the Tribunal's attention to the appropriate Regulations indicating that they do not provide such a facility and that the decision should have been made by the Chairman on his own after the submission of the written application.
21		The Tribunal considered Rule 35 and indicated to Mr Manning that there was nothing within the body of the Regulations that precluded an oral application for a review and, indeed, had this not been a reserved decision he would have had such a facility at the conclusion of the case. In the circumstances the Tribunal indicated that it was the fairest way to proceed in this case and it would have been inconsistent with the overriding objective to have excluded the Respondents from the proceedings as they were entitled to make their views known. Furthermore Mr Manning was reminded of the application that was made by the Respondents for a postponement of this case because their representative was not available. It had been refused in order to ensure that his application for review was expedited. Furthermore, if Mr Manning had cause to challenge the legality of the oral application for review he should have done so yesterday at the commencement of the hearing”.

40.	As can be seen, the Claimant was applying for a review of a review.  This cannot be done unless there has been a material change in circumstances (see the judgment in Goldman Sachs v Montali [2002] ICR 1251, HHJ Peter Clark and members), which there was not here. Indeed, the above passage seems to indicate a yet further application for a review.  

41.	In any event, the Tribunal has given reasons.  In part, it is based upon a comparison with what would have occurred had an unreserved decision been given to the parties at the substantive hearing and a review then been sought.  In that example, it seems unrealistic for a judgment to be made by the Chairman alone as to whether the application for review has no reasonable prospect of success when all three members on this hypothesis would be sitting listening to the account.  What is to happen to them?  Should they be discharged temporarily while the application is made orally? and if the Chairman so decides, brought back in to hear the review?  In my judgment, that is a matter of case management and the Tribunal cannot be faulted in the analogue which it makes.  

42.	However, the Claimant says that there should not have been a hearing.  That is an incorrect reading of Rule 35 which is not prescriptive. It indicates “without the need to hold a hearing” in Rule 35(3) that a hearing is not ruled out.  I suggested to Mr Manning in debate that he was better off with a hearing and he agreed, subject, of course, to his points about the preparation time and cost. A Claimant is in a better position seeking a review at an oral hearing, particularly one conducted a number of weeks after the substantive hearing, than he or she is putting it in writing and the Chairman making his own decision in Chambers.  

43.	A more forceful point is that by the Rule, a judgment on a preliminary consideration is made by the Chairman who made the decision or, in certain circumstances, others.  Under the previous Rules, there were circumstances in which that judgment should be made by a Tribunal of three (see P J Draycard & Sons Ltd v Wilson [1977] ICR 642 EAT).  I say under the Rules, but there was no authority for that in the Rules and it remained in the jurisprudence of the EAT.  The position now is that the Chairman makes that judgment.  Is this judgment, which apparently is made with a lay member, to be regarded as a nullity?  I know the Employment Tribunal, and thus the Chairman, engaged the over-riding objective in Regulation 10.  I also know that by Rule 10(1) and 10(2), a Chairman may make directions as to the manner in which the proceedings are to be conducted.  Yet these are subject to the succeeding rules, including Rule 35.  

44.	In substance and in reality, a review was conducted by the full Tribunal, properly constituted as it then was of the Chairman and one member.  I am well aware from the passages I have referred to above that the language is contra-indicative. But this case took place over two days, the Respondent put in written submissions which were considered, the Claimant had an opportunity to put the material which he wanted before the Tribunal.   I have never seen a two-day preliminary consideration for a review and as I look at the six pages of this judgment, it leaves me with the firm impression that this was, indeed, a review.  If that is so, as Mr Manning accepted, he would not have had a complaint.  He also accepted that he could not complain of having a hearing, where the Respondent was not there to cross-examine him and address oral submissions to the tribunal.  As a matter of law, the Chairman was required to order a review if he did not reject it, for Rule 35(4) provides that “If the application for a review is not refused the decision shall be reviewed”. It was not refused by the Chairman but steps were taken to list a hearing. The application must therefore have passed the preliminary stage and what occurred could only be a review.

45.	Lest I am wrong, I am anxious to take a practical approach to this appeal which is proportionate to the issue raised by the Claimant.  That is £80 of costs incurred in photocopying and some unquantifiable additional stress.  One way is to consider that the preliminary consideration of this was taken by the Chairman, albeit in company with the lay member, Mrs Thurston.  That does not get over the Claimant’s criticism that the Respondent had an input into it.  However, I do not regard that as fatal. It would have been open to the Chairman in Chambers to have called for assistance from the Respondent.  There is no bar to that; there is no prescription as to the way in which the Chairman should conduct a preliminary consideration.  A hearing may be conducted; representations may be sought.  

46.	In my judgment, the preliminary consideration was, in fact, undertaken by the Chairman, albeit with Mrs Thurston there and the judgment is not to be reduced to a nullity by what might appear to be an irregularity in relation to Rule 35(3).  I can see no disadvantage in a Chairman who wishes to have the contribution of members to the decision as to whether to conduct a preliminary hearing on a review doing just that and so I would reject the technical complaint.  

47.	In any event, it seems to me that the way in which the Tribunal has approached its own reasons is a sufficient justification for this case.  It has enabled me to add the reasons in this review judgment to the substantive reasons and to assist the conclusions which I have made.  As I have indicated, the Claimant was successful in some of the points he made.  I, too, must consider the overriding objective.  To all intents and purposes, the Claimant has had an oral hearing at a review of the judgment by a full tribunal, at which he has failed.  Since he has failed on the substantive judgment, it is clear that there is no reasonable prospect of success of the appeal on the review, the Tribunal having considered the criteria under Rule 34(3) and taken all steps which it felt appropriate to adjust its reasons in the light of the application which was made to it. The appeal against the review is dismissed. 

I appreciate that the Claimant may be dissatisfied that the 13 years of his involvement with these issues may come to an end, but I certainly hope that he will regard this as the end of legal proceedings and that he may move on. He has told me of the difficulty he is having finding work and the stress which these proceedings are causing him.  He is to be complimented on the very careful preparation for this case.  I thank Mr Manning for the very measured way in which he has presented his oral arguments, which cannot have been easy for him. 

48.	In my opinion, now reinforced by my refusal of a review, the Notices of Appeal stand no reasonable prospect of success and I will direct under Rule 3 that no further action be taken and the appeals be dismissed.

Appeal
49.	An application has been made by Mr Manning for permission to appeal to the Court of Appeal following my indication to him as to the procedure.  He contends that insufficient attention has been given by the Employment Tribunal and by me to the issue of disability discrimination consisting of the disadvantage faced by a person who has the medical condition exhibited by the Claimant in representing himself in disciplinary proceedings.  

50.	Further, he contends that the issue of reasonable adjustments, which was not accepted by the Employment Tribunal, constitutes a reason which would be, I take it, a compelling reason for it to be considered.  He also indicates that there were a number of factual errors in the judgment which gave at the hearing.  I have taken on board some of the points he made and again, I allowed him to see a transcript before it is published.  

51.	In my judgment, there is no reasonable prospect of success in the EAT and it follows that the prospects of success in the Court of Appeal cannot be any higher when it will be appreciated that the Respondent will have an opportunity to appear.  Nor do I consider that there is a compelling reason for the case to be heard. Since I have granted the application for review yet affirm my earlier Judgment, my response to any fresh application for permission to appeal this composite Judgment is the same.